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EXHIBIT 10.16
TRAVELWEB(SM) PARTICIPANT AGREEMENT
FOR INTERNET PAGES, ON LINE AVAILABILITY AND RESERVATIONS
This Agreement is entered into by and between TravelWeb, Inc. (hereinafter
called "TWI") and Choice Hotels International, Inc. (hereinafter called
"Participant") to be effective on the latest date of execution by both parties
hereto on the terms and conditions as set forth herein (the "Agreement").
I.
DEFINITIONS
The following definitions shall be applicable to this Agreement:
1.1 TravelWeb(SM). The service xxxx and trade name owned by TWI for
its service to provide access to information on hotels, resorts,
cruise lines and other travel and lodging subjects and a limited
access to TravelWeb(sm) Participant's reservation system with the
interactive capability to permit an operator of a Client
Computer (as hereinafter defined) to make a reservation.
1.2 Internet. A worldwide network of computers with information
which is accessible by Client Computers.
1.3 TravelWeb(sm) Participant. A person or entity who enters into an
agreement with TWI to publish Internet Pages (as hereinafter
defined) and to provide access to the TravelWeb(sm) Participant's
reservation system with the capability to make and cancel a
reservation.
1.4 TravelWeb(sm) Order Form. A written order form, acceptable to TWI
and in the form prescribed by TWI, executed by TWI and
Participant setting forth the information necessary for the
publication of Internet Pages (as hereinafter defined) from the
information available on the UltraSelect Course Filter database
(for "Lite Line" pages) or from Materials (as hereinafter
defined) (for brochures) and, in the event different from those
set forth on Exhibit A hereto, the agreed fees and costs to be
paid for the order.
1.5 Change Order. A written change, on a form prescribed by TWI, in
the TravelWeb(sm) Order mutually agreed to and executed by TWI
and Participant.
1.6 Client Computer. A computer with access to information on the
Internet.
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1.7 TravelWeb(sm) Reservation. A TravelWeb(sm) Reservation is a
reservation made with a TravelWeb(sm) Participant via
TravelWeb(sm) by an operator of a Client Computer.
1.8 Net TravelWeb(sm) Reservation. Net TravelWeb(sm) Reservations
within a particular time period equals the number of reservation
made by an operator of a Client Computer via TravelWeb(sm) within
such time period, less the number of reservations made by an
operator of a Client Computer as to which notice of cancellation
is received via TravelWeb(sm) within such time period.
1.9 Materials. All of the information, in documentary form or
otherwise, provided to TWI by Participant to be used by TWI to
create and publish the Internet Pages.
1.10 TravelWeb(sm) Activity Report. An on line report available only
to Participant and its Authorized Representatives via
TravelWeb(sm) providing information regarding the viewing of
Participant's Internet Pages by operators of Client Computers (to
include, without limitation, daily transaction statistics, total
transfers by client domain and total transfers from each archive
section) and all available data prepared by TWI regarding
TravelWeb(sm) Reservations with Participant.
1.11 Internet Page. The finished informational product created and
published by TWI from the information in the UltraSelect Course
Filter database (for "Lite Line" pages) and the Materials (for
brochures) pursuant to this Agreement and a TravelWeb(sm) Order
or a Change Order which appears on an individual Client Computer
screen and which is available on and is accessible by Client
Computers on the Internet.
1.12 Authorized Representative. An authorized representative is any
person or entity with the express right, authority and/or
obligation to perform the obligations of or act on behalf of TWI
or Participant with respect to this Agreement.
1.13 Certificate of Internet Page Acceptance. Written acceptance by
Participant of the Internet Pages and authorization to publish
them. The Certificate of Internet Page Acceptance will be in a
form prescribed by TWI.
1.14 Interface. The connection created by TWI between TravelWeb(sm)
and Participant's Reservation System pursuant to the technical
and functional design specifications set forth in the UltraSwitch
UltraSelect HRS Interface Specifications (the "Specifications").
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1.15 Interactive Portion of TravelWeb(sm). The functional capability
provided by TWI via the Interface of on-line Client Computers'
access via TravelWeb(sm) to a Participant's Reservation system
with the capability to make and cancel a reservation.
II.
INTENT OF THIS AGREEMENT
2.1 Mutual Intent. It is mutually intended that this Agreement and
all documents made reference to herein, set forth, in its
entirety, all of the terms, conditions, rights and obligations
of TWI and Participant with respect to the publishing of
Internet Pages by TWI and the installation and operation of the
Interface by TWI as specifically set forth herein. This
Agreement is not exclusive and Participant may publish the
Internet Pages and accept Internet Reservations with any other
person or entity.
III.
CREATION AND PUBLICATION OF A TRAVELWEB(TM) LITE LINE INTERNET
PAGES; DUTIES AND OBLIGATIONS OF TWI AND PARTICIPANT
3.1 TravelWeb(sm) Order. A TravelWeb(sm) Order may be for "Lite Line"
pages, which shall contain only the information available from
the UltraSelect Course Filter database, or for brochures, which
shall contain information from the Materials provided by
Participant. Each TravelWeb(sm) Order shall be completed by the
respective property on a TravelWeb(sm) Order Form. The
TravelWeb(sm) Order Form may be amended or replaced by TWI at
any time without notice prior to any TravelWeb(sm) Order being
executed. To be effective, any TravelWeb(sm) Order Form must be
executed by an Authorized Representative of TWI and Participant.
A new TravelWeb(sm) Order Form shall be completed and agreed to
with respect to each request for Internet Pages to be created
and published by TWI.
3.2 Materials for Creation and Publication of the Internet Pages.
TWI shall use the information available in the UltraSelect
Course Filter database for Lite Line Pages. Participant shall be
solely responsible for providing to TWI all Materials reasonable
and necessary for TWI to create and publish all other Internet
Pages pursuant to the TravelWeb(sm) Order. All Materials shall
be in form, substance, condition and format as required by TWI
and shall meet or exceed all of the requirements set forth in
the TravelWeb(sm) Order Form and in all other reasonable and
necessary requirements requested by TWI. TWI is hereby
authorized to utilize, consistent with the TravelWeb(sm) Order
and for no other purposes other than those expressly set forth
in this Agreement, all copyrights, trademarks, trade names,
service marks or other proprietary
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marks or symbols contained within the Materials (collectively,
"Participant's Marks").
3.3 Processing the Order: Creation of the Internet Pages Approvals.
TWI shall process the TravelWeb(SM) Order pursuant to the
schedule set forth therein. Upon creation of the Internet Pages
to be published pursuant to the TravelWeb(SM) Order and this
Agreement, TWI shall deliver to Participant, for inspection and
approval, the completed Internet Pages. Participant shall,
within seven (7) days of such delivery, make any and all written
corrections or proposed amendments it may have to the Internet
Pages and shall provide TWI with written notice detailing such
corrections and/or proposed amendments. In the event the
Internet Pages are approved, Participant shall, within seven (7)
days of receipt of the Internet Pages, provide TWI with a
Certificate of Acceptance. Notwithstanding the above and
foregoing, in the event Participant does not provide written
notice to TWI of corrections or proposed amendments or approving
the Internet Pages within seven (7) days of receipt of the
Internet Pages, approval of the Internet Pages shall be deemed
given by Participant to TWI and TWI shall be authorized to
publish the Internet Pages on the Internet. As used in this
Section 3.3, Participant shall mean the parent corporate entity
of Participant with respect to LiteLine pages and refers to
Participant's franchised hotels with respect to brochures.
3.4 Authority to Publish. Participant hereby authorizes and directs
TWI to publish on the Internet as part of TravelWeb(SM) the
approved or deemed approved Internet Pages.
3.5 TravelWeb(SM) Management. TWI shall be responsible for all costs
associated with the connection of the TravelWeb(SM) server to the
Internet and all hardware and software maintenance for such
server. TWI shall insure that the server is monitored for
failures 24 hours per day, seven days per week and will use
commercially reasonable efforts to assure that the server is
operational and available on the Internet 98% of the time, 24
hours per day, seven days per week for each rolling 90-day
period.
IV.
THE INTERFACE: DUTIES AND OBLIGATIONS OF TWI AND PARTICIPANT
4.1 Duties of TWI. TWI shall be responsible for all costs associated
with the production, development, service and maintenance of the
Interface and the Interactive Portion of TravelWeb(SM) including,
but not limited to providing all reasonable and necessary
personnel, technical support, hardware and software to produce
the Interface between Client Computers and Participant's
reservation system meeting or exceeding the Specifications. TWI
will periodically review and update, as is reasonable and
necessary, all
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security applications of the Interactive Portion of TravelWeb(SM)
including, without limitation, the current Client Computer use
limitations.
4.2 Duties of Participant. Participant shall provide all reasonable
and necessary personnel and technical support, reasonable and
necessary programming and modification of its reservation system
and all other reasonable and necessary accommodations to produce
a dependable and operable Interface with its reservation system
and shall cooperate fully with TWI personnel to produce the
Interface. Through the Interface, Participant will permit access
to Participant's reservation system by all Client Computers
utilizing TravelWeb(SM) and will permit all such Client Computers
to reserve and cancel rooms available to be reserved in
Participant's reservation system and to make credit card
payments to Participant in connection with the TravelWeb(SM)
Reservation. Neither the Internet Pages nor the information
contained in Participant's reservation system shall contain any
information which is intended to or is otherwise likely to cause
any user of a Client Computer to make a reservation with
Participant by any means other than the Interactive Portion of
TravelWeb(SM) except that the listing may contain the franchised
hotel's direct telephone number.
4.3 Implementation of the Interface. The Interface shall be
implemented pursuant to a mutually agreeable schedule.
4.4 Enhancement or Modification of the Interactive Portion of
TravelWebsm. TWI may undertake to modify the operation or
enhance the capability of the Interactive Portion of
TravelWebsm. In such event, TWI shall provide notice to
Participant of such modification or enhancement at least 30 days
prior to such modification or enhancement taking effect and will
make such adjustments and modifications to TravelWeb(SM) at TWI's
sole expense, as are reasonable and necessary to maintain the
Interface with Participant. Participant agrees to cooperate with
TWI with regard to its modification or enhancement of the
Interactive Portion of TravelWeb(SM).
4.5 Modification of Participant's Reservation System. In the event
Participant modifies its reservation system or modification of
its reservation system is required for Participant if it
continues to participate in the Interactive Portion of
TravelWebsm, Participant shall pay for such modification to its
reservation system. In the event Participant modifies its
reservation system and such modification requires TWI to modify
the Interface or the Interactive Portion of TravelWeb(SM) to
maintain the Interface and to comply with its functional
specifications with Participant, Participant shall pay TWI its
standard consulting rate and all reasonable expenses incurred by
TWI as a result of the modification.
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V.
FEES AND COSTS
5.1 Creation and Publication Fees. For the creation and development
of the Internet Pages, Participant shall pay to TWI the fees and
costs set forth on Exhibit A attached hereto or, if otherwise
agreed, as set forth on each TravelWeb(SM) Order Form and/or
Change Order Form.
5.2 TravelWeb(SM) Reservation Fees. For each Net TravelWeb(SM)
Reservation processed pursuant to this Agreement, Participant
shall pay to TWI U.S. $2.00. The TravelWeb(SM) Reservation Fee
may be increased up to 10% once each year. The TravelWeb(SM)
Reservation Fee is in addition to the fees to be paid by
Participant for transactions utilizing TWI's UltraSwitch system.
5.3 Communication Line Costs. Participant shall pay all costs of
communication lines required for the Interface and operation of
the Interactive Portion of TravelWeb(SM).
5.4 Payment of Fees and Costs. TWI shall provide to Participant an
invoice itemizing all fees and costs and Participant shall pay
each invoice upon receipt and each invoice shall be past due
thirty (30) days thereafter.
VI.
TRAVELWEB (TM) REPORTS
6.1 TravelWeb(SM) Activity Reports. TWI shall provide to Participant
via TravelWeb(SM) current on line TravelWeb(SM) Activity Reports.
VII.
TERM AND TERMINATION
7.1 Term. Unless terminated as provided herein, the term of this
Agreement shall begin on the date this Agreement is executed by
both parties and shall terminate on the date of its third (3rd)
anniversary. This Agreement shall be automatically renewed and
extended for additional one (1) year terms unless, at least
sixty (60) days prior to the expiration of any one (1) year
term, either party hereto shall give notice of its intent not to
renew and extend this Agreement.
7.2 Termination. This Agreement may only be terminated prior to the
expiration of the initial three (3) year term or any extended
term (if applicable) in the
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event of a breach hereof and the failure to cure within the
applicable time period as provided herein or in the event this
Agreement is not performable as the result of an event of force
majeure as set forth in Section 9.2 hereof.
7.3 Effect of Termination. In the event this Agreement is terminated
as permitted herein or the term of this Agreement expires
without being renewed and extended, the publication of all
Internet Pages and access to Participant's reservation system
via TravelWeb(SM) shall cease and all duties and obligations as
set forth herein shall immediately cease and terminate except
for the provisions set forth in Article VIII, Sections 9.7,
9.8, 10.1 and Articles 11 and 12 hereof and any payments which
may be due after the date of termination and all Materials shall
be returned to Participant. Notwithstanding the immediately
preceding sentence, any TravelWeb Order or Change Order not
complete at the date of termination shall be completed provided
the properties being the subject of the order contract with TWI
for completion and publication of the pages.
VIII.
INTELLECTUAL PROPERTY AND DATA
8.1 Ownership of Materials. Participant represents and warrants that
it is the sole and exclusive owner, or has the authorized right
of use in connection herewith, of all Materials and
Participant's Marks to be used hereby, by virtue of common or
statutory law, used in connection therewith and that the
publication of same on the Internet Pages is and shall be, at
all times material hereto, legal and shall not, in any manner,
violate any applicable law or the rights of any third party.
8.2 Protection of Intellectual Property Rights. Participant shall be
solely and exclusively responsible for the protection of any and
all of its intellectual property including, but not limited to
the inclusion of any and all statutory or other notices
customarily used or required for purposes of providing notice of
ownership or protection of Participant's Marks in connection
with the Materials, the Internet Pages and the Interactive
Portion of TravelWebsm. TWI shall have no responsibility for the
protection or enforcement of any rights of Participant with
respect to Participant's Marks or the information contained on
an Internet Page.
8.3 Ownership of Internet Pages. The Internet Pages, shall, at all
times material to this Agreement, be and remain the property of
Participant. TWI may not use or publish the Internet Pages in
any manner other than pursuant to this Agreement without the
prior written consent of Participant.
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8.4 TravelWeb(SM) Reservation Information. Subject to Participant's
right to receive information pursuant to Section 6.1 hereof, TWI
shall own all statistical data regarding a Client Computer's
access to TravelWeb(SM) and the name and address of the user of
each Client Computer accessing TravelWeb(SM) provided TWI shall
not use or distribute such data in any manner which is specific
to Participant or reasonably determinable as related to
Participant (except as required to perform this Agreement). TWI
may use all aggregate data generated from the Interactive
Portion of TravelWeb(SM) provided such data is not specific to
Participant or reasonably determinable as related to
Participant, and does not indicate that a customer is a customer
of Participant.
IX.
DEFAULT
9.1 Events of Default. Subject to Section 9.2 below, any one of the
following will be considered an Event of Default:
(i) The failure of either party to pay any amount due
hereunder within the time required;
(ii) The failure of Participant or any of its participating
affiliates (being a company controlled by Participant or
under common control with another company) or franchisees
to satisfy the obligations set forth in this Agreement;
(iii) The refusal or failure of either party (including
Participant's participating affiliates, or subsidiaries)
to perform diligently and in good faith each and every
material provision of this Agreement; or
(iv) The commencement by either party of a voluntary case under
Chapter 11 or 7 of the United States Bankruptcy Code, as
from time to time in effect, the commencement against
either party of an involuntary case under said Chapter 11
or 7, either party seeking relief as a debtor under any
applicable law, other than said Chapter 11 or 7, of any
jurisdiction relating to the liquidation or reorganization
of debtors or the modification of the rights of creditors,
the entry of a court order adjudging the party bankrupt or
insolvent, ordering its liquidation or reorganization or
assuming custody or appointing a receiver or other
custodian of its property, or its making an assignment for
the benefit of, or entering into a composition with, its
creditors.
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9.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 9.1 is caused by or results from
acts of God, fire, war, civil unrest, accident, power
fluctuations or outages, telecommunication fluctuations, outages
or delays, utility failures, mechanical defects, or other events
beyond the control of the defaulting party. However, if any such
occurrence results in any of the events described in Section
9.1, and the same continues for more than thirty (30)
consecutive days, either party may terminate this Agreement by
providing notice as required herein.
9.3 Notice of Default and Opportunity to Cure. Upon the occurrence
of an Event of Default, the non-defaulting party shall give
notice of such default to the defaulting party and, in the event
of a monetary default, the defaulting party shall have ten (10)
days from the date of such notice within which to cure such
default or, in the event of a non-monetary default, the
defaulting party shall have twenty (20) days within which to
cure such default. In the event such default is not cured within
the time required herein, this Agreement may then be terminated.
9.4 Effect of Default.
(i) By Participant. In the event of a default of this
Agreement by Participant and the failure of Participant to
cure such default after notice and opportunity to cure as
provided herein, TWI shall be entitled (i) to terminate
this Agreement and TWI's obligations and duties set forth
herein shall cease (ii) to retain Materials, the Internet
Pages and any and all other Materials used by, developed,
or created by TWI in the performance of this Agreement,
and (iii) pursue any and all claims for fees and costs
agreed to be paid pursuant to this Agreement without any
offset for mitigation resulting from TWI's terminated
obligation to continue to develop and create Internet
Pages as required by the TravelWeb(SM) Order. It is
acknowledged and agreed by Participant that the damages to
TWI for a default on this Agreement by Participant would
be difficult, if not impossible, to measure and that the
balance unpaid on any TravelWeb(SM) Order in addition to
any unpaid TravelWeb(SM) Reservation Fees or other fees is
a fair and reasonable estimate of TWI's damages in the
event of such default and shall be the total amount due TWI
in such event.
(ii) By TWI. In the event of a default of this Agreement by TWI
and the failure of TWI to cure such default after notice
and opportunity to cure as provided herein, Participant
may terminate this Agreement and TWI shall deliver to
Participant all Materials and all other materials used,
developed and/or created by TWI in the development and
creation of the Internet Pages and TWI shall refund to
Participant all amounts paid pursuant to the TravelWeb(SM)
Order less a reasonable amount (no greater than the price
set forth on the applicable
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TravelWeb(SM) Order) for such portion of the development
and creation of the Internet Pages accomplished by TWI as
represented by the Materials delivered to Participant.
9.5 Risk of Internet Usage. Each party acknowledges and agrees that
the Internet is a communication medium over which the parties
have no control and that its continued utilization in its
present form at current costs is uncertain. Therefore, if at any
time during the term of this Agreement the cost of access to the
Internet increases or there is imposed a fee or cost for use of
the Internet communication lines, or there is imposed any law,
governmental ruling, or regulation the result of which increases
the cost of access to or usage of the Internet or otherwise
makes it impractical, in either party's sole discretion, to
continue to perform this Agreement, either party may, upon
notice to the other party, immediately terminate the Interactive
Portion of TravelWeb(SM), the Interface, and/or this Agreement
without such action constituting an event of default.
9.6 Errors on Internet Pages. Notwithstanding any other provision
hereof, in the event an Internet Page published pursuant to this
Agreement contains an error caused by TWI, its employees, agents
or subcontractors, other than an error arising from TWI's gross
negligence or willful misconduct, Participant's sole and
exclusive remedy for such error shall be TWI's obligation to
remove such Internet Page from TravelWeb(SM) within twenty four
(24) hours of becoming aware or notified of such error and shall
then cure such error by correcting the information contained on
the Internet Page and restoring the corrected and approved
Internet Page as promptly as reasonably possible but in no event
later than seven (7) days of date of notice from Participant of
such error, each at TWI's sole cost and expense.
9.7 Waiver of Consequential Damages. Neither party shall be liable
to the other for any consequential damages proximately caused or
resulting from any default of this Agreement or arising out of
the performance of this Agreement, and each party hereby
expressly waives such damages.
9.8 Disclaimer and Limitation of Liabilities. TWI WILL NOT BE
RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR INACCURACIES
IN THE MATERIAL OR THE INTERNET PAGES; (ii) NOR WILL IT HAVE ANY
LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE
INTERNET PAGES UNLESS EXPRESSLY SET FORTH HEREIN, OR (iii) ANY
CLAIM, DAMAGE OR LIABILITY OF ANY NATURE ARISING OUT OF A CLIENT
COMPUTER'S ACCESS TO PARTICIPANT'S RESERVATION SYSTEM AND/OR ANY
TRANSACTION OR THE USE OF A CREDIT CARD OR OTHER DEBIT DEVISE IN
CONNECTION THEREWITH, EXCEPT TO THE EXTENT RESULTING FROM THE
FAILURE OF THE INTERACTIVE PORTION OF TRAVELWEB(TM) TO PERFORM
PURSUANT TO THE SPECIFICATIONS (PROVIDED HOWEVER, TWI SHALL NOT
BE LIABLE FOR ANY FAILURE OR
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DEFECT RESULTING FROM ANY THIRD PARTY SOFTWARE APPLICATION SET
FORTH AS PART OF THE SPECIFICATIONS) OR FROM TWI'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. ALL WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT OR SERVICE OR
OTHERWISE, ARE DISCLAIMED BY TWI AND WAIVED BY PARTICIPANT.
X.
INDEMNIFICATION
10.1 Indemnification in the Event of Certain Losses. Subject to the
other provisions hereof, Participant agrees to indemnify, defend
and hold harmless TWI and TWI's partners, successors, assigns,
subsidiaries, affiliates, and each such entities directors,
officers, employees and stockholders, from and against any
losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("TWI's Losses") occurring on
account of Participant's fault except to the extent due to the
fault of TWI. Subject to the other provisions hereof, TWI agrees
to indemnify, defend and hold harmless Participant, and
Participant's partners, successors, assigns, subsidiaries,
affiliates, and each such entities directors, officers,
employees and stockholders, from and against any losses,
claims, liabilities, damages or expenses (including reasonable
attorney's fees) ("Participant's Losses") occurring on account
of TWI's fault except to the extent due to the fault of
Participant. Promptly after receipt by an indemnified party of
notice of the commencement of any action or the presentation or
other assertion of any claim which could result in any
indemnification claim pursuant to this Section 10.1, such
indemnified party shall give prompt notice thereof to the
indemnifying party and the indemnifying party shall be entitled
to participate therein or, to the extent that it shall wish,
assume the defense thereof with its own counsel. If the
indemnifying party elects to assume the defense of any such
action or claim, the indemnifying party shall not be liable to
the indemnified party for any fees of other counsel or other
expenses, in each case subsequently incurred by such indemnified
party in connection with the defense thereof, other than
reasonable costs of investigation and preparation, unless
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. Whether or not an indemnifying party elects to
assume the defense of any action or claim, the indemnifying
party shall not compromise or settle any such action or claim
without the indemnified party's written consent (which consent
shall not be unreasonably withheld). The parties agree to
cooperate to the fullest extent possible in connection with any
claim for which indemnification is or may be sought under this
Agreement.
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XI.
CONFIDENTIALITY
11.1 Confidential Information. During the term of this Agreement, it
is acknowledged by Participant and TWI that each may receive or
have access to confidential and proprietary information of the
other party including, but not limited to, the UltraSwitch
UltraSelect HRS Interface Specifications, Participant's
reservation system specification, marketing information,
business plans, financial information and other proprietary
information or trade secrets ("Confidential Information"). Each
party acknowledges that it shall not acquire any ownership or
other rights in or to Confidential Information of the other, and
shall use the Confidential Information only for the purposes of
the performance of this Agreement, and shall keep confidential
and not disclose the Confidential Information to any other
person, firm or corporation without the prior written consent of
the other party. Any Confidential Information transmitted in
writing or by other tangible media shall remain the property of
the owner and shall be returned to the owner at its request,
together with all copies made thereof, at the conclusion of this
Agreement. The parties agree that the provisions of this Section
11 shall extend, without limitation, beyond the date of the
expiration or other conclusion of this Agreement. Each party
agrees to take all reasonably avoidable measures, at their own
expense, to ensure that the other party's Confidential
Information is not accessible to other persons and to upgrade
such measures as often as necessary and practicable.
11.2 Use of Marks. Participant acknowledges that "TravelWeb(sm)" is a
trade name and servicemark of TWI and that it shall not use such
xxxx without the prior written approval of TWI. Except as
otherwise permitted herein, TWI agrees that it shall not use any
of Participant's Marks or any portion thereof or elements
contained therein without Participant's prior written consent.
XII.
MISCELLANEOUS
12.1 Controlling Law. This Agreement will be interpreted pursuant to
the laws of the State of Texas without reference to its conflict
of laws principles. Any action brought relating to or arising
out of this Agreement must be brought in the state or federal
courts situated in the county and state of the residence or
principal place of business of the party against whom the action
is brought (or any of them, if more than one).
12.2 Notice. All notices and other communications contemplated hereby
must be in writing (except in the case of electronically
transmitted data) and (a) personally delivered, (b) deposited in
the United States mail, first-class, registered or certified
mail, return receipt requested, with postage prepaid, (c) sent
by overnight courier service (for next business day delivery),
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shipping prepaid, (d) sent by telecopy with confirmation of
receipt of telecopy to the number indicated, or (e) transmitted
directly to the recipient by electronic data transmission
pursuant to arrangements made between the parties. Such notices
and other communications (except in the case of electronically
transmitted data) shall be addressed as follows:
IF TO TWI: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. Choice Hotels International, Inc.
Xxxxx 0000 00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxx Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, III Attention: General Counsel
(if by telecopy: (if by telecopy: (000) 000-0000)
(000) 000-0000) With a copy to Xxxxx X. Xxxxxx
[at same address]
(if by telecopy to: (000) 000-0000)
or such persons or addresses as any party may request by notice
duly given hereunder. Except as otherwise specified herein,
notices will be deemed given and received when received.
12.3 Binding Effect. This Agreement will be binding upon and will
inure to the benefit of the legal representatives, successors
and duly authorized assigns of each party whether resulting from
merger, acquisition, reorganization or assignment pursuant to
the terms hereof.
12.4 Assignment; Authorized Agents. This Agreement is not assignable
by either party without the prior written consent of the other
and such consent shall not be unreasonably withheld or delayed;
provided, however, it is acknowledged and agreed that the
obligations of TWI as set forth in paragraphs 3.2 and 3.3 herein
may be performed by any Authorized Representative.
Notwithstanding any restrictions herein on assignment or
transfer, either party shall have the right at its option to
assign and transfer all of its rights and interests hereunder to
any entity or entities resulting from an acquisition, merger or
sale of substantially all assets.
12.5 Entire Agreement. This Agreement, the Exhibits hereto, and the
documents made reference to herein (and any replacements and/or
amendments thereto) shall constitute the entire, sole and
exclusive agreement between TWI and Participant with respect to
the subject matter set forth herein and shall supersede and
cause the mutual termination of any and all other agreements,
oral or written with respect to TravelWeb(SM) including, but not
limited to, that certain TravelWeb(SM) Participant Agreement
between TWI and Participant with an effective date of ________.
Each party hereto acknowledges
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that it has not relied upon any representation or promise not
set forth herein.
12.6 Parties Independence. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties
hereto are separate and distinct entities independently
contracting with each other at arms length.
12.7 Franchisees. TravelWeb acknowledges that Participant consists of
a system of franchised hotels and that the responsibility of
Choice Hotels, Inc., with respect to property level obligations
contained herein, shall be limited to best efforts to compel its
franchisees to comply with their respective obligations.
TRAVELWEB, INC.
BY: /s/ XXXX X. XXXXX, III
-------------------------
Xxxx X. Xxxxx, III
President
DATE:
----------------------------
PARTICIPANT:
CHOICE HOTELS INTERNATIONAL, INC.
BY: /s/ XXXXX X. XXXXXX
-------------------------------
-------------------------------
ITS: SR VP INFORMATION SYSTEMS
-----------------------------
DATE: 9/3/96
----------------------------
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